RBG On “But For,” Canons of Construction, and The Rule of Lenity

January 27th, 2014

In a brief blitz, RBG concurs in judgment, along with Justice Sotomayor in Burrage v. United States, to express some quick thoughts on the meaning of but-for causation, and how we should read similar terms in different legal rules, subject to the rule of lenity.

For reasons explained in my dissenting opinion in Uni- versity of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013), I do not read “because of ” in the context of antidiscrimination laws to mean “solely because of.” See id., at ___–___, ___–___ (slip op., at 20–21, 23–24). And I do not agree that words “appear[ing] in two or more legal rules, and so in connection with more than one pur- pose, ha[ve] and should have precisely the same scope in all of them.” Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933). But I do agree that “in the interpretation of a criminal statute subject to the rule of lenity,” where there is room for de- bate, one should not choose the construction “that disfa- vors the defendant.” Ante, at 12. Accordingly, I join the Court’s judgment.

This is like a drive-by jurisprudential shooting. Bang bang lenity.

I previously noted that Justice Ginsburg, Breyer, and Sotomayor would not rely the rule of lenity in 2011, but RBG did apply it in Skilling.